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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL CUFFY

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2194 EDA 2021 Appeal from the Judgment of Sentence Entered October 1, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0002979

- 2020

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J. MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 03, 2023 Nathaniel Cuffy appeals the judgment of sentence following his
conviction s for simple assault and harassment. 1 He challenges the admission of evidence. We affirm. Cuffy’s conviction s stem from an argument between him and t he victim

. After receiving a radio call for a person screaming, police officers arrived on the scene and observed Cuffy on top of the victim with “his hands around the shoulder [and] neck area” of the victim

. See N.T., Trial, 4/23/21, at 11 , 27. Both officers were wearing body cam era s at the time

. Id. at 13, 32. After speaking with the victim, the officers arrested Cuffy. The Commonwealth charged Cuffy with numerous crimes including those mentioned above.

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. §§ 2701(a) and 2709(a)(1), respectively.J

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Cuffy filed a motion in limine to exclud e as hearsay any statements from the victim that the Commonwealth wished to introduce by way of the body

cam era footage. At the suppression hearing, the Commonwealth introduced the body cam era footage of one officer. It offered that the statements made by the victim were admissible under the hearsay exception for present sense impression s . N.T., Motion to Suppress Hearing, 4/23/21, at 6. It also told the court that it was not arguing that the statement s w ere admissible under the excited utterance exception. Id. After re viewing the video, the court determined that the victim’s statements were not covered by the excit ed utterance exception but were covered by the present sense impression exception. Id. at 2 7. The trial court conducted a bench trial the same day. The court found Cuffy guilty of the above

- referenced crimes and sentenced him to 18 months ’ reporting probat ion. This timely appeal followed. Cuffy raises the following issue: “Did not the [] lower court err an d abuse its discretion by improperly allowing the introduction of hearsay evidence on a recording of a police officer’s body worn camera that was not an excited utterance?” Cuffy’s Br. at 3

. Cuffy challenges the admi ssion of evidence , which we review for an abuse of discretion. Commonwealth v. Luster , 234 A.3d 836 , 838 ( Pa.Super. 2020)

. Hearsay is an out of court statement offered into evidence to prove the truth of the matter asserted. Pa.R.E. 801(c). Hearsay is not admissible unless an exception applies. Pa.R.E. 802. One such exception is anJ

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excited utterance , which is “ [a] statement relating to a startling event or condition, mad e while the declarant was under the stress of excitement that it caused

. ” Pa.R.E. 803( 2 ). Cuffy maintains that the court abused its discretion when it denied his
motion in limine to preclude the admission of the victim’s statements. He states that the court denied the motion and concluded that the statements were admissible under the excited utterance exception to hearsay. He make s no argument that the court erred in finding the s tatements admissible under the present sense impression exception to the hearsay rule. Cuffy’s challenge is meritless. Cuffy ’s sole argument on appeal is that the court erred in finding the statements admissible under the excited utterance exception . Howev er, the court admitted the statements under the present sense impression exception to hearsay

. Cuffy does not challenge this finding on appeal. We therefore affirm the judgment of sentence. Judgment of sentence affirmed. 2

_________________ __________ ______ ____ _______ 2 In his Rule 1925(b) statement , Cuffy claimed that the court’s admittance of the victim’s statements violated his right to confrontation. See Pa.R.A.P. 1925(b) Statement, filed 4/21/22. However, he h as abandon ed this claim by failing to argue it in his brief

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/3/2023